SC2544

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 51 OF 2023

APPLICATION UNDER s. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
KILROY KOIROBETE
GENIA
Applicant

AND:
PUKA TEMU
First Respondent

AND:
THE ELECTORAL COMMISSION
Second Respondent

Waigani: Hartshorn J
2024: 23rd & 27th February

SUPREME COURT REVIEW – practice and procedure - Objection to competency of application for leave to review

Cases Cited: 
Michael Kandiu v. Powes Parkop (2015) SC1597

Counsel:
Mr. D. Kaima, for the Applicant
Mr. W. Bigi, for the First Respondent
Mr. J. Palma, for the Second Respondent

27th February 2024

1. HARTSHORN J: This is a decision on a contested objection to competency of an application for leave to review the dismissal of an election petition. The objection to competency is made by the first respondent and is supported by the second respondent. 

Background

2. The first respondent was declared the winner for the Abau Open Electorate in the 2022 National General Election. The applicant’s election petition in the National Court was dismissed following a successful no case to answer submission made by the first respondent after the applicant had closed his case. The applicant filed this application for leave to review.

Objection

3. The first respondent objects to the competency of the application for leave to review on two grounds. These grounds are that:

a)	The applicant’s affidavit filed on 3rd August 2023 in support of the application for leave to review was filed outside of the 14 days period thereby contravening Order 5 Rules 11 and 14 Supreme Court Rules.

b)	The applicant’s affidavit filed in support of the application for leave to review failed to set out the circumstances pertaining to the application thereby contravening Order 5 Rule 11 Supreme Court Rules.

First ground

4. As to the first ground the first respondent submits first, that an affidavit in support was not filed with the application for leave to review on 13th July 2023. Secondly, as to the affidavit filed on 3rd August 2023 of the applicant, if that affidavit is to be relied upon as the affidavit in support of the application for review, no application for an extension of time to file the affidavit in support later than when the application for leave to review was filed pursuant to Order 5 Rule 11 or later than the 14 day period in Order 5 Rule 14 was obtained and no application to dispense with these requirements was obtained.  

5. In this instance the application for leave to review was filed on 13th July 2023 and the first affidavit of the applicant to be filed was filed on 3rd August 2023. The applicant submits that Order 5 Rule 11 Supreme Court Rules does not state that an affidavit in support has to be filed with the application for leave to review and so he is entitled to rely on the affidavit filed 3rd August 2023 as the affidavit in support of the application for leave to review. 

6. Order 5 Rule 11 is as follows:

“11.	The application for leave shall be supported by an affidavit of the applicant. The affidavit shall set out the circumstances pertaining to the application and shall have annexed a copy of the election petition and the judgment and order of the National Court.”

7. As to the interpretation of Order 5 Rule 11, in Michael Kandiu v. Powes Parkop (2015) SC1597 (Davani, Kariko, Toliken JJ), the Supreme Court at [50] said:

“50.	Reviews before the Supreme Court are also not ordinary matters but are special matters that require the applicant’s constant and detailed attention and that also warrant that all requirements under the rules are properly complied with bearing in mind that non compliance will be fatal to the Review.

51.	The Courts have held that the use of the term “shall” denotes a mandatory application of the provisions of the rules (see In the matter of Section 19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC 917).  Even if there is substantial compliance with the rules, it will not cure the failure by the applicant to comply with the mandatory requirements of the rules (see Special Reference by Morobe Provincial Executive) (2010) SC1089).” ”

8. In Order 5 Rule 11, the words, “shall be supported by” are not described. For instance, there is no description of when the support of the affidavit should be given. In the absence of a description, the words, “shall be supported by” to my mind, mean that the application for leave to review from when it is filed, shall be supported by an affidavit of the applicant. If it were the position that an affidavit of the applicant could be filed later than when the application for leave to review was filed, there would be a period of time when the application for leave to review was not supported by an affidavit of the applicant from the time when the application for leave was filed. This would be contrary to the wording of Order 5 Rule 11. The wording of Order 5 Rule 11 is not open to such an interpretation given that “shall” is to be interpreted mandatorily.

9. Further, that an affidavit supporting an application for leave to review should be filed at the same time as the application for leave to review, is supported by Order 5 Rule 15 Supreme Court Rules. That Rule provides for the service of the application for leave to review and supporting affidavit upon the respondents. This reference to service refers to the first service upon the respondents in an application for leave to review proceeding and indicates, to my mind, that the application for leave to review and affidavit in support would be filed together, to enable both documents to be able to be served at the same time.

10. Consequently, to file an affidavit of the applicant in support of the application for leave to review later than when the application for leave to review is filed, requires an extension of time or dispensation to do so to be obtained. Such an extension or dispensation has not been obtained in this instance. The dispensation which was obtained concerned service of documents and not the filing of them.  The filing of the application for leave to review therefore, without an affidavit in support being filed at the same time, is a breach of Order 5 Rule 11 Supreme Court Rules. I am satisfied that the first respondent has satisfactorily made out that he is entitled to the relief which he seeks.

11. Given the above it is not necessary to consider the other submissions of counsel.

Orders

a)	The objection to competency of the first respondent concerning a 	breach of Order 5 Rule 11 Supreme Court Rules by the applicant is 	upheld.

b)	The application for leave to review is dismissed.

c)	The costs of the respondents of and incidental to the said application for leave to review shall be paid by the applicant.

d)	The applicant’s security deposit of K5,000.00 shall be paid equally to 	the respondents towards the costs to which they are entitled pursuant 	to order c) above.
_____________________________________________________________
StratServ Legal:	Lawyers for the Applicant                                     
Henaos Lawyers: Lawyers for the First Respondent                 
Adam Ninkama Lawyers: Lawyers for the Second Respondent